Court name
High Court
Case name
Gowaseb v S
Media neutral citation
[2010] NAHC 27




















NOT
REPORTABLE


CASE NO. CA 64/2009





IN THE HIGH COURT
OF NAMIBIA











In the matter between:










IMMANUEL
GOWASEB

APPELLANT











and










THE
STATE

RESPONDENT















CORAM: HOFF,
J
et
VAN NIEKERK, J















Heard on: 2010.03.26











Delivered on: 2010.03.26 (Ex
tempore)



______________________________________________________________________________



APPEAL JUDGMENT







HOFF, J.: [1] The
appellant was convicted in the Magistrate Court of the crime of
malicious damage to property and sentenced as follows:







Three
years imprisonment wholly suspended for five years on condition
accused compensate complainant in the sum of five thousand six
hundred and ninety two Namibian Dollars and fifty cents (N$5 692.50)
compensation to be paid before release.”











[2] I agree wit the submission
made by Ms Esterhuizen appearing on behalf of the respondent, that
the sentence is vague. It is also common course that the appellant
was never given the opportunity to pay the compensation ordered by
the Court
a quo.
Neither has there been any application by the State to put the
suspended sentence into operation







[3] What is common cause is
that, the appellant soon after the sentence had been pronounced, was
detained and sometime later served a term of imprisonment at the
Omaruru prison. The appellant has at this stage served half of the
three years imprisonment imposed by the magistrate.







[4] The appellant for obvious
reasons at this stage is not in the position to compensate the
complainant. The offence of which appellant had been convicted of is
a serious offence. However, this Court is of the view that the
magistrate erred in not allowing the appellant an opportunity to
compensate the complainant as ordered by the Court. It is also
unfair to the appellant not to be given the opportunity to compensate
the complainant as ordered by the Court. This Court is at this stage
justified because of misdirection of the magistrate to interfere with
the sentence imposed in the Court
a
quo
.







[5] In the circumstances the
sentence imposed by the magistrate is set aside, but substituted with
the following sentence:







The appellant is sentenced to
three (3) years imprisonment of which eighteen (18) month
imprisonment are suspended for a period of five years on condition
the appellant is not convicted of the crime of malicious damage to
property committed during the period of suspension.







The sentence is backdated to
2
nd
of September 2008.























__________



HOFF, J















I agree



















___________________



VAN NIEKERK, J































ON BEHALF OF THE
APPELLANT IN PERSON











Instructed by:















ON BEHALF OF THE
RESPONDENT ADV. ESTERHUIZEN











Instructed by:
OFFICE OF THE PROSECUTOR-GENERAL